School district can’t punish teachers who refuse to lie to parents about their children, court rules

(The Daily Signal) – A federal judge has blocked a Southern California school district from punishing teachers who notify parents about their child’s purported gender transition in violation of district policy.

One of the lawyers who represented the teachers claims the ruling provides a “framework” for striking down policies banning parental notification across the country.

“It’s hard to overstate the significance of this ruling. There’s really nothing like it nationwide,” Paul Jonna, special counsel at the Thomas More Society and partner at LiMandri & Jonna LLP, told The Daily Signal in a statement Tuesday. “These gender policies at schools are dangerous and unconstitutional, and this ruling provides a framework for striking them down nationwide.”

“We know this fight is far from over, but the Thomas More Society is committed to seeing it through to the end,” Jonna added. The Thomas More Society, a not-for-profit public interest law firm, focuses on cases involving life, family, and freedom.

The Thomas More Society represents Elizabeth Mirabelli and Lori Ann West, two teachers in the Escondido Union School District with 55 years of experience between them. The teachers sued the school district after it established policy Administrative Regulation 5145.3, which mandates that teachers and school staff will immediately accept a student’s expressed gender identity and bars teachers from revealing the student’s claimed gender identity to parents or guardians unless the student consents to notifying them.

In a training session on Feb. 3, 2022, a district instructor told teachers that if they revealed a student’s stated transgender identity to parents or to other “individuals who do not have a legitimate need for the information,” that would be considered discriminatory harassment punishable under a policy the district adopted in 2003.

In August 2022, the teachers received an email with a list of students, including their preferred names and pronouns. The list included directions on whether teachers could disclose the names and pronouns to the students’ parents or guardians. Mirabelli reportedly received an email with a list of students like this: “[student name]: Preferred name is [redacted] (pronouns are he/him). Dad and stepmom are NOT aware, please use [redacted] and she/her when calling home.”

Mirabelli and West sued the school district, the California Board of Education, and the state superintendent of public instruction, claiming AR 5145.3 violates their First Amendment rights to free speech and free exercise of religion.

Judge Roger T. Benitez in the U.S. District Court for the Southern District of California ruled Thursday that the teachers are likely to prevail on their religious freedom claims, and he granted a preliminary injunction preventing the school district from punishing Mirabelli and West if they notify parents about their kids’ stated transgender identities.

Benitez, an appointee of President George W. Bush, noted that the district considers “communicating to a parent the social transition of a school student to a new gender” to be “discrimination/harassment” despite “having little medical or factual connection to actual discrimination or harassment.”

He ruled that Mirabelli and West “are entitled to preliminary injunctive relief from what the defendants are requiring them to do here, which is to subjugate their sincerely-held religious beliefs that parents of schoolchildren have a God-ordained right to know of significant gender identity-related events.”

Benitez cited nine Supreme Court rulings declaring that “parents have a right, grounded in the Constitution, to direct the education, health, and upbringing, and to maintain the well-being of, their children.”

“Parental involvement in essential to the healthy maturation of schoolchildren,” he wrote. “The Escondido Union School District has adopted a policy without parent input that places a communication barrier between parents and teachers. Some parents who do not want such barriers may have the wherewithal to place their children in private schools or homeschool, or to move to a different public school district. Families in middle or lower socio-economic circumstances have no such options.”

“For these parents, the new policy appears to undermine their own constitutional rights while it conflicts with knowledgeable medical opinion,” he added. “An order enjoining the new district policy is in the better interests of the entire community, as well as the plaintiff teachers.”

The judge cited Dr. Erica Anderson, a clinical psychologist with 40 years of experience who claims to be a transgender woman.

“A school-facilitated transition without parental consent interferes with parents’ ability to pursue a careful assessment and/or therapeutic approach prior to transitioning, prevents parents from making the decision about whether a transition will be best for their child, and creates unnecessary tension in the parent-child relationship,” Anderson warned. “Nor is facilitating a double life for some children, in which they present as transgender in some contexts, but cisgender in other contexts, in their best interests.”

Benitez concluded that the school’s policy causes “a trifecta of harm.”

The policy “harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse. It harms the parents by depriving them of the long recognized Fourteenth Amendment right to care, guide, and make health care decisions for their children. And finally, it harms plaintiffs who are compelled to violate the parent’s rights by forcing plaintiffs to conceal information they feel is critical for the welfare of their students—violating plaintiffs’ religious beliefs.”

The judge ruled that it is unclear whether the teachers can prove the school district violated their rights to free speech, but the court can resolve that issue later, because the school district likely violated their religious freedom.

Both Mirabelli and West believe that God has ordained the relationship between parents and children and that God forbids lying and deceit.

Since teachers, rather than all school staff, were required to attend the February 2022 training, Benitez ruled that the school district’s policy was not “generally applicable” and, therefore, it is subject to “strict scrutiny,” a legal test to determine if the government violated essential rights. To pass this test, the government must prove that the policy is narrowly tailored to serve a compelling governmental interest.

The judge ruled that the district has not identified a “compelling government interest” in hiding a student’s stated gender identity from parents and that the district did not consider the “least restrictive means” in pursuing such a policy.

“In the end, Mirabelli and West face an unlawful choice along the lines of: ‘lose your faith and keep your job, or keep your faith and lose your job,’” Benitez ruled.

The judge’s ruling does not resolve the case. Rather, Benitez granted a preliminary injunction blocking the school district from punishing Mirabelli or West for disclosing students’ stated gender identities to parents. The injunction will only last until another order from the court, and the underlying case remains unresolved.

The ruling comes shortly after California’s Democratic attorney general, Rob Bonta, sued the Chino Valley Unified School District to block its policy requiring schools to notify parents if their children claim to identify as transgender. Earlier this month, a California superior court judge issued a temporary restraining order blocking the Chino Valley policy.

Bonta and other California officials will likely defend policies that hide the truth from parents, but Benitez’s ruling may well provide a “framework” for striking down such policies, as Jonna suggests. In any case, these issues are likely to rise to higher courts, and parental notification ultimately may reach the U.S. Supreme Court.